Australia’s current approach to refugees
raises serious questions about our good faith in dealing with
refugees.

In the beginning

The first recorded words spoken to a foreigner in Australia are ‘warra
warra’ — ‘go away’. This cry,
coming from Aborigines on
the shore, was heard by Captain John Hunter on the
Sirius.[1] In the current
national political climate of near hysteria over uninvited boat arrivals, the
same cry (or, at least, its English
translation) has been heard once again loud
and clear — although the irony of the situation appears to be lost on
those who
pick and choose their history.

The Border Protection Legislation Amendment Act1999[2] (BPLAA) was passed by
federal parliament late last year amidst a steady flow of xenophobic
vilification of asylum seekers, in which
those who risked their lives on leaky
boats from Indonesia with the hope of entry to Australia were linked with
kidnapping, fraud,
vice, extortion, contract killing, slave trading and child
prostitution (to name but a few).[3]
In any event, we were told, they were all queue-jumpers, forum shoppers, and
economic refugees — and ready to descend en masse.

The BPLAA built upon changes to the Migration Act introduced earlier
in the year,[4] which sought to
address the issue of unlawful arrivals in a number of ways. There were sharp
increases in the penalties for those
involved in bringing people to Australia,
and increased powers available for law enforcement. For asylum seekers, a range
of unashamedly
punitive changes sought to restrict not only their right to stay
in Australia, and the conditions on which they could stay, but also
their very
right to apply for a ‘protection visa’ and have their claim
considered.

Central to the changes for asylum seekers was the policy that people with
access to protection from other countries should not be
entitled to seek
protection here. This is uncontroversial in principle — it is a policy
underlying the approach towards refugees
in the Refugees Convention
itself.[5] In practice, however, a
fine line divides burden sharing by countries dealing with large movements of
people across borders, and
obligation avoidance.

Arguably, avoidance is the overwhelming aim and consequence of the changes.
Australia’s current approach to refugees now starts
with the question: how
can we get rid of this person? This approach runs counter to the purpose and the
spirit of the Refugees Convention,
and raises serious questions about
Australia’s good faith in dealing with refugees. Relaxed and comfortable
Australia is, it
seems, rolling out the razor wire.

Refugees and protection obligations

The changes introduced by the BPLAA for refugees built, in part, on a number
of developments in the law dating back to the Migration Reform Act1992 (Cth). Prior to 1992, eligibility for a protection visa required a
decision maker to ask whether or not a person was a refugee within
the meaning
of the Refugees Convention.[6] The
1992 changes replaced this with the question: does Australia owe
‘protection obligations under the Refugees Convention’
to an
applicant?[7]

Initially, this seems to have made little change to the approach taken by our
courts and tribunals — ultimately, a country will
only have protection
obligations under the Convention if a person is, in fact, a refugee. However,
the effect of the change was to
shift the focus away from the applicant and his
or her claims, and onto whether or not they were Australia’s
‘problem’.

In a string of cases from 1997, the courts began to wind back the limits of
Australia’s obligations under the Convention in
cases where applicants had
access to protection elsewhere. This followed developments in Europe, where the
‘safe third country’
doctrine was also being used to minimise the
protection obligations owed to people who had passed through other countries
before
making a claim for
asylum.[8]

Independently of this line of cases were two Federal Court authorities
arising out the tooth-and-nail struggle to deny responsibility
for East Timorese
refugees, and have them sent to Portugal. The approach taken by the courts in
those cases reflected a more cautious
approach — and, in the view of the
author, one which grasped the basic humanitarian objectives of the Refugees
Convention as
a whole, and the context of Australia’s international human
rights obligations.

The battle for the East Timorese in Australia is still being
waged[9] but the changes introduced
by the BPLAA have made sure that in terms of the principles applicable to
refugee cases, the war has been
won by the Minister.

Thiyagarajah and Safe Third Countries

The Full Federal Court in
Thiyagarajah,[10] developed
the distinction between determining whether or not someone is a refugee, and
whether or not Australia owes that person
protection obligations. The Court
focused on the concept of non-refoulement — the principle that a
person must not be returned to a country in which they will face
persecution.[11]

Mr Thiyagarajah, a Sri Lankan asylum seeker, had previously been granted
refugee status by France, and been given permanent residence
there. The Court
found that it would not be in breach of Australia’s obligations to return
a person to another country in which
they had already been granted refugee
status, and would receive ‘effective protection’ there, including
the right to
reside, enter and re-enter. Effective protection was said to mean
protection from refoulement to a person’s country of origin, should
that person happen to be a refugee.

The Court also held that where effective protection was found to be
available, there was no obligation that any consideration be given
to whether
the person was, in fact, a refugee in those circumstances.

Whether or not it sensed what lay within the decision, the Court carefully
limited its analysis to the facts before it, and made it
clear that the outer
boundaries of the principle of effective protection were to be charted by
principles of international law.[12]
On its face, the decision is consistent with the approach to refugees taken by
the Convention as a whole. As noted above, the Convention
recognises the
principle that people who can avail themselves of protection in the form of
nationality or de facto nationality are
not entitled to international protection
as refugees.[13] However, later
cases seized on the reasoning of Thiyagarajah and extended its
application significantly beyond these limits.

In Rajendran[14]it was
held that Australia did not owe protection obligations to a person who had the
right of permanent residence in a third country,
even if the person had not been
recognised there as a refugee.

It was then held in
Gnanapiragasam[15]that there need not be a right of permanent residence in a safe third
country for Australia to be able to deflect a person there.
If a person had a
right to re-enter a country and could there make an application for refugee
status, that would suffice.

Similarly in Kabail,[16]
the Court found there was no requirement that there be a ‘significant
connection’ between a person and a country to which
they were to be
deflected. All that mattered was that a person had the ‘opportunity to
attain refugee status’ in some
other place. His Honour, RD Nicholson J
noted, without a trace of irony it would seem, that the relevant evidence might
include evidence
of ‘generosity in grant of the status by the third
country’.[17]

It was also found to be unnecessary for the third country to which a person
was to be returned to be a signatory to the Convention,
although such a factor
may be relevant in considering effective protection;
Al-Sallal.[18]The
applicable test was whether or not, ‘as a matter of practical reality and
fact, the applicant is likely to be given effective
protection by being
permitted to enter and to live in a third country where he will not be under any
risk of being returned to his
original
country’.[19]

The Court in Al-Sallal affirmed the view that non- refoulement
is the core obligation of the Convention, describing it as the ‘engine
room’ of the Convention.[20]The concern with this approach is that it puts the ‘problem’
before the people. Rather than considering Australia’s
obligations to
refugees in the context of finding humanitarian solutions, it seeks primarily to
minimise Australia’s exposure.

It is yet to be argued that Australia would be fulfilling its Convention
obligations by sending asylum seekers to a desert island,
from where there would
be no risk of being returned to a place where they would be persecuted —
but such is the logic of the
approach. What the approach in these cases loses
sight of is that the object and purpose of the Convention is a fundamentally
humanitarian
one. As Kirby J noted in Chen Shi
Hai:[21]

While courts of law, tribunals and official must uphold the law, they must
approach the meaning of the law relating to refugees with
its humanitarian
purpose in mind. The Convention was adopted by the international community, and
passed into Australian domestic
law, to prevent the repetition of the affronts
to humanity that occurred in the middle of the twentieth century and earlier. At
that
time Australia, like most other countries, substantially closed its doors
against refugees. The Convention and the municipal law
giving it effect are
designed to ensure that this mistake is not repeated.

In the
climate of hysteria in which the BPLAA was introduced, it is perhaps no surprise
that the legislation takes the approach of
the courts following
Thiyagarajah to new lows. The substance and shortcomings of the
legislation are considered below.

Effective nationality: Portuguese and the East
Timorese

In contrast to, although not necessarily inconsistent with, the reasoning in
the above cases, the Federal Court set a more careful
course in its decisions
involving East Timorese asylum seekers.

One of the undecided issues in those cases is whether or not Australia can
rely on Portugal to take those asylum seekers who fled
to Australia as long as
10 years ago. The connection claimed by the Minister is one of nationality which
Portugal has not withdrawn
since the days of its colonial rule, ending in
1975.

In Jong’s case,[22]
the Court held that any Portuguese nationality to be relied upon to deflect
Australia’s obligations needed to be ‘effective’.
To find that
nationality was effective, a decision maker must consider a range of practical
matters, such as whether or not an applicant
could travel to another country of
apparent nationality, and whether they had the relevant documents with which to
satisfy the authorities
that they were in fact a national. In other words,
beyond formal legal nationality, it had to be accessible in a real sense.

In Lay’s case,[23]
the concept of effective nationality was taken even further by Finkelstein J,
who held that a court or tribunal would have to be
satisfied that the
fundamental rights of a refugee would be protected there:

In my view, comfortably with the views expressed in the United Nations
Handbook and comfortably with the purpose and object of the Refugees
Convention, ‘effective nationality’ is a nationality that
provides
all of the protection and rights to which a national is entitled to receive
under customary or conventional international
law. [at
692.6]

This reasoning is consistent with the view that our
obligations to refugees go beyond the basic question of non-refoulement,
to include consideration of other basic human rights. Finkelstein J notes, for
example, the protection under the Refugees Convention
of freedom of religion,
freedom of association and free access to local courts for refugees. This
approach properly considers Australia’s
obligations to refugees in the
context of the Convention as a whole, and consistently with its humanitarian
purpose.[24]

In Lay’s case, the Court went on to find that the applicant did
not have the effective nationality of Portugal, and was consequently entitled to
have his claims for asylum determined in Australia. Important to that decision
was a public statement made by the Portuguese government
to the effect that
those seeking to acquire Portuguese nationality needed to make a voluntary
statement that they wished to become
Portuguese.

This position was consistent with Portugal’s professed support for East
Timor’s right of self-determination, and its reluctance
to have East
Timorese forced to take up Portuguese nationality. Therefore, the Court found
that it could not be satisfied that East
Timorese people required to go to
Portugal against their will would be granted Portuguese nationality, and could
therefore face return
to what was, at that time, Indonesia.

The caution with which the courts in these cases approached this issue
(mindful, it seems, of the person on the other end of the ‘issue’)
was, however, not to last. The Minister, in the great tradition of modern
Australian migration law,[25] has
not only taken his bat and ball home, but, to strain the cliché, kidnapped
the umpire.

The Border Protection Legislation Amendment Act
1999

Following the introduction of the BPLAA, s.36 of the Migration Act now
provides, relevantly, as follows:

(3) Australia is taken not to have protection obligations to a non-citizen
who has not taken all possible steps to avail himself
of a right to enter and
reside in, whether temporarily or permanently and however that right arose or is
expressed, any country apart
from Australia, including countries of which the
non-citizen is a national.
(4) However, if the non-citizen has a well-founded fear of being
persecuted in a country for reasons of race, religion, nationality,
membership
of a particular social group or political opinion, subsection (3) does not apply
in relation to that country.
(5) Also, if the non-citizen has a well-founded fear that:
(a) a country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons
of race, religion, nationality, membership of a particular
social group or
political opinion;
subsection (3) does not apply in relation to the first-mentioned country.
(6) For the purposes of subsection (3), the question of whether a
non-citizen is a national of a particular country must be
determined solely by
reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of
any other provision of this Act.

It is difficult to see how these
provisions will be workable for asylum seekers. What must a refugee applicant do
to satisfy the obligation
to take all possible steps to avail themselves of any
right to enter and reside, even temporarily, in any other country that will
not
either persecute, or refoule, that person? Must every country in the
world be considered to see whether or not they might offer even a transit visa,
which might
then allow an application for a refugee visa to be lodged in that
other country? Will the asylum seeker need to show that they have
approached
each and every country apart from Australia?

The real impact of the section may depend largely on the meaning given to the
word ‘reside’. In one case decided on the
issue, the Refugee Review
Tribunal has found that a Colombian man, entitled to enter Argentina for a
90-day period without a visa,
had the right to ‘reside there’ for
the purposes of the section; a right to enter as a visitor was enough for the
purposes
of s.36(3). It was found that he could make an application for asylum
in Argentina, and was therefore owed no protection obligation
by
Australia.[26]

The provisions confirm that no connection to a third country is required for
Australia to be able to defer its protection obligations.
Furthermore, the
asylum seeker must take all possible steps to avail themselves of a right
to go elsewhere — it would seem it is not good enough that they have taken
all reasonable steps.

Considerations of the effectiveness of protection offered by a third country
would appear to be secondary to whether or not the asylum
seeker has taken
‘all possible steps’ to avail themselves of any rights they may
have. The provisions firstly blur the
distinction between a right to enter and
reside in a country, and an ability to apply for such a right, which may not be
granted.
In addition, in cases of possible dual nationality, the provisions
specifically remove any requirement to consider whether or not
nationality is
effective. The only consideration is the law of the foreign country (s.36(6)),
and whether or not they would subject
a refugee to refoulement (s.36(5)).
Consideration of the principles of international law in relation to nationality,
which were previously considered relevant
in determining Australia’s
obligations under the convention, and have been argued in cases involving East
Timorese applicants,[27] are
therefore also excluded.

However, the real sting of the changes introduced by the BPLAA comes in the
introduction of s.91P, whereby people with dual nationality
or access to
protection from a designated third country (such designation to be made by the
Minister) are not even able to make a valid application for a visa. The
breadth of this is quite extraordinary — there is no requirement that
there be a consideration of whether or not the person
may be subject to
refoulement by that third country, or indeed whether or not the person
may be subject to persecution in that third country.

Some scope exists for protecting refugees from refoulement where they
are to be returned to designated third countries — to
‘designate’ a country, the Minister must first
receive in writing
from the United Nations High Commission for Refugees (UNHCR) a declaration that
a specified country provides certain
measures to guarantee ‘effective
protection’ (s.91N(3)). However, this proviso does not apply to cases of
potential dual
nationality.[28]
There is no requirement that such a country be ‘designated’.
Furthermore, the proviso does not mean that the individual
case will be
considered to determine whether or not an asylum seeker is in fact
protected from refoulement — it is a blanket provision.

To take the East Timorese as an example, if they were to arrive in Australia
today, they would not even be able to make a valid application,
let alone have
it considered, despite the fact that their Portuguese nationality has been a
subject of great dispute. They would
simply be removed from Australia as soon as
possible (s.198(9)).

The only exception to this is if the Minister believes it is in the public
interest to determine that the provision does not apply
to a non-citizen. The
legislation notes, however, that the Minister ‘does not have a duty to
consider whether or not to exercise
the power … in respect of a
non-citizen, whether he or she is requested to do so by the non-citizen or by
any other person,
or in any other circumstances’, and the exercise of this
power cannot be subjected to judicial review (s.475(2)(e)).

Obligation avoidance

Large-scale movement of people across borders will always be a challenging
issue for countries, and it is inevitable that countries
will seek to protect
the integrity of their borders and maintain control over the entry of people
into their territory. However,
there is nothing to suggest that
Australia’s current legislative regime for dealing with asylum seekers is
other than a unilateral
attempt to deflect its responsibility for such people
— as opposed to a genuine attempt to identify the appropriate country
to
deal with an asylum seeker’s
claim.[29] They raise the very real
possibility of ‘shuttlecocking’ or ‘refugees in orbit’,
whereby asylum seekers are
sent from country to country, each denying
responsibility.

There are valid reasons why an asylum seeker may travel to one country rather
than another, other than as a ‘forum shopper’.
As the Jesuit Refugee
Service has noted in its submissions to the United Nations High Commissioner for
Refugees (UNHCR) regarding
this legislation, the presence of family members, or
the existence of an established ethnic community which can provide vital support
for a refugee are obvious motivations. In turn, a supportive community for
refugees will allow for the ongoing contribution of refugees
to Australian
society.[30]

Such matters are recognised in the conclusions of the UNHCR Executive
Committee, which has stated that the intentions of an asylum
seeker as regards
the country in which they wish to request asylum should ‘as far as
possible be taken into
account’.[31] The conclusion
further notes that an asylum seeker should not be refused solely on the ground
that it could be sought from another
State — unless the person has a
‘connection or close links with another State’ and it ‘appears
fair and reasonable’
for them to be required to seek protection
elsewhere.[32] Australia’s
laws are fundamentally incompatible with these
conclusions.[33]

Even if it is accepted that non-refoulement is the ‘engine
room’ of the Convention, the current provisions fail this basic
obligation. Because the provisions make
invalid applications by people with dual
nationality, or access to protection in designated countries, there is no
requirement to
consider each case on its merits to see whether or not a person
is actually at risk of refoulement. The Jesuit Refugee Service has
described this as a ‘white list’ approach ‘where particular
countries are declared
safe in a generic fashion, regardless of whether a
particular asylum-seeker might not be safe in that
country’.[34]

There is no hint of procedural fairness in the new provisions. As noted
above, persons found to have either dual nationality or the
right to enter a
designated country are unable to even have their application considered. For
those asylum seekers, the compliance
officers of the Department of Immigration
and Multicultural Affairs are judge and jury, and once an adverse decision is
made, the
refugee claimant will be subject to deportation. They will not be
provided with legal advice unless they request it, but even then,
the Act is
worded such that it might be denied on the basis that such legal advice relates
not to their detention, but only their
deportation (ss.193(2), 256).

In addition, earlier amendments to the Migration Act have made it
plain that there is no obligation on any officer to provide a person in
immigration detention with an application form
for a visa, unless the detainee
specifically requests one. The same amendments also prevent the Human Rights and
Equal Opportunities
Commission and the Ombudsman from accessing detainees unless
detainees have lodged a complaint with those bodies in writing (for
which it
would seem they have no right to receive assistance or advice) (ss.193(2),
193(3), 256).

For those lucky enough to be allowed to have their claims considered, they do
so with limited access to legal services, and with severely
curtailed rights of
appeal. For example, it is not a permissible ground of appeal that a decision
‘involved an exercise of
power so unreasonable that no reasonable person
could have so exercised the power’. Nor is it possible to appeal a
decision
on the basis that a decision breached the rules of natural justice, or
that it involved the exercise of a discretionary power in
bad faith (s.476).

Finally, as if to make it perfectly clear that any protection is offered
begrudgingly, people who have entered Australia unlawfully
are only entitled to
be granted a ‘Temporary Protection Visa’. This visa allows them to
stay in Australia for three years,
at which time they will have to apply for a
permanent visa, and potentially start all over
again.[35] For asylum seekers who
are, by definition, fleeing persecution (and often torture and trauma), it is
more uncertainty and insecurity,
and another hurdle to building a safe
future.[36]

Building bigger fences

We have to be seriously concerned about our treatment of asylum seekers when
our own Human Rights Commission is effectively denied
access to detainees. Only
a few months ago, detainees in a number of detention centres were so aggrieved
with the conditions of their
detention that they broke down the fences in
protest. The answer was not to examine the reasons for this. It was to build
bigger
fences, and commence criminal prosecutions against those
‘responsible’. On 28 August 2000, protests in the Woomera detention
centre led to buildings being burnt down and riot police had to be called with
tear gas and a water cannon.

Is the ‘problem’ so serious that we can justify treating people
arriving here unlawfully worse than criminals (who can
at least apply for bail)?
Between 28 November 1989 and the time of writing, a total of 8289 people arrived
in Australia unlawfully
by boat.[37]
Nobody is suggesting we throw open our borders, but 8289 people over 11 years is
hardly cause for panic.

It is worth remembering that the largest number of ‘unlawful
non-citizens’ in Australia at the present time are from the
same place as
those first people to arrive in boats on our shores without visas authorising
their entry into Australia, and to whom
the words ‘warra warra’ were
first delivered. They are from the United Kingdom — but presumably while
we can still
beat the English at cricket, we won’t be getting too
concerned.

The views expressed herein are not those of the Commission. Thanks to Karyn
Anderson and Jennifer Devlin for their very helpful comments
on drafts of this
article. I also acknowledge and thank Professor Guy Goodwin-Gill for his
thoughts on the issues dealt with in this
article.

References

[*]Jonathon Hunyor is a
solicitor at the Northern Territory Legal Aid Commission in Darwin.

[5] See Articles 1A(2), 1(C), 1(D)
and 1(E) of the Convention Relating to the Status of Refugees, Geneva, 28 July
1951, as amended by
the Protocol relating to the Status of Refugees, New York,
31 January 1967, hereafter ‘the Refugees Convention’. See
also
Hathaway, James, The Law of Refugee Status, Butterworths, Canada, 1991,
pp.57, 205.

[6] A refugee is a person who
‘owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership
of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to
such fear,
is unwilling to avail himself of the protection of that
country’; Article 1A, Refugees Convention.

[9] The Refugee Review Tribunal
has referred a case to the Administrative Appeals Tribunal (AAT) by way of test
case. The decision of
the AAT is, at the time of writing, reserved after a
hearing in Darwin. The author is the solicitor in that case. It is estimated
that there are 1600 outstanding applications for protection visas involving
people from East Timor, some of which are over 10 years
old. The Minister for
Immigration and Multicultural Affairs has submitted that the applicant should be
returned to East Timor, or
alternatively, be sent to Portugal.

[11] Article 33 of the Convention
provides that ‘No Contracting State shall expel or return
(refouler) a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or
political opinion’.

[24] The approach is also
consistent with cases dealing with Article 1E of the Convention; see for example
Barzideh v Minister for Immigration and Ethnic Affairs (1996) 139 ALR
710. For a competing view, see Piotrowicz, Ryszard, ‘Kon Tji Lay v
Minister for Immigration & Ethnic Affairs: The Function and Meaning of
Effective Nationality in the Assessment of Applications for Asylum’,
International Journal of Refugee Law, 1999, Vol 11, p.544.

[25] See for example McDonald,
Colin, ‘The coming of the Boat People to Australia, Brickbats and the non
material rewards of Pro
Bono legal work’, paper delivered to the
Commonwealth Attorney General’s Pro Bono Law Conference, Canberra, 5
August
2000.

[27] See Jong, above,and Lay, above, and also the acknowledgement of the relevance of the
principles of international law in Thiyagarajah, above at 693.34,
702.20.

[28] Acting President of the
Refuge Review Tribunal, Dr Peter Nygh notes: ‘In a world were empires have
dissolved, countries have
been partitioned and which has seen massive movements
of population, dual nationality is very common. However, many persons, including
many Australians, may not be aware that they possess more than one
nationality’; Nygh, Peter, Role of the Refugee Tribunal and Recent
Developments in Refugee Law, paper delivered to the Migration Law
Conference, Law Society of South Australia, 16-18 June 2000.

[29] Hathaway considers similar
developments in other states, and criticises this approach as being
‘inconsistent with the spirit
of the Convention’. He notes that they
reflect a weakening commitment to the right of the refugee to decide the most
effective
means of securing their safety, and infringe the principle of burden
sharing; above, ref 6, p.47.

[30] Submission to the office of
the United Nations High Commission for Refugees, ‘Regarding the adoption
of ‘safe third country’
legislation in Australia, by the Jesuit
Refugee Service, prepared by Penelope Mathew, p.6.

[35] See Migration Regulations
Schedule 2, reg 785. A permanent visa can be granted at an earlier stage at the
discretion of the Minister;
see Schedule 2, reg 866.228(b).

[36] Such treatment may also
breach our obligation under Article 7 of the International Covenant on Civil and
Political Rights to not
subject persons to ‘cruel, inhuman or degrading
treatment’; see Taylor, Savitri, ‘Understanding the Changes to
Australia’s Off-shore Humanitarian Resettlement Program’, (2000)
April/May Migration Action 4 at 12.